Can This Non-Marriage Be Saved?

The Obama administration tries to abolish civil unions.

"President Barack Obama said he could not imagine a circumstance in which a state banning gay marriage was legal," the Puffington Host reports. The comment came during an interview with Clinton aide turned ABC Newsman George Stephanopoulos, who asked Obama, in the Puffington paraphrase, "whether gay marriage was a right under the Constitution."

Obama's answer:

"Well, I've gotta tell you that--in terms of practical politics, what I've seen is a healthy debate taking place state by state, and not every state has the exact same attitudes and cultural mores. And I--you know, my thinking was that this is traditionally a state issue and--that it will work itself out," he said. "On the other hand--what I also believe is that the core principle that people don't get discriminated against--that's one of our core values. And it's in our Constitution."

"Well, I can't, personally. I cannot," Obama responded. "That's part of the reason I said, ultimately, I think that, same-sex couples should be able to marry. That's my personal position. And, frankly, that's the position that's reflected--in the briefs that we filed--in the Supreme Court."

That's a misleading description of the administration's friend-of-the-court brief in Hollingsworth v. Perry, the case challenging the constitutionality of California's Proposition 8. The administration does not go so far as to urge the court to strike down all state bans on same-sex marriage. Instead it urges a novel solution that would have the effect of abolishing nonmarital civil unions, until now the compromise of choice between supporters and opponents of same-sex marriage.

Best of the Web Today columnist James Taranto on why NYC needs more men. Photo: Getty Images

There are three approaches the court could take in deciding Hollingsworth. One would be to uphold Proposition 8 on the ground that defining marriage is traditionally a state matter and it defies logic to suggest that centuries-old constitutional provisions mandate a redefinition nobody seriously thought of until (to be generous) a few decades ago.

At the other extreme, the justices could take the position that the Constitution mandates just that and rule that every state is obliged to recognize marriages between two men or two women.

Or the court could take a middle path, finding a basis upon which to strike down Proposition 8 without imposing same-sex marriage nationwide. Arriving at such an approach would require a more complicated legal argument, but it would be more politically palatable than imposing same-sex marriage everywhere, including in states where the electorate still overwhelmingly opposes it.

The Ninth Circuit took such a middle approach, as we explained in December. It found that Proposition 8 was unconstitutional not because it limited marriage to opposite-sex couples but because it took away from same-sex couples a right the state had previously granted, albeit through judicial fiat. (To be clear, the right was not withdrawn from those who had already exercised it. Same-sex couples who married before Proposition 8 are still considered married under California law.)

The trouble is that the Ninth Circuit's argument was based on a defective analogy to the 1996 case of Romer v. Evans, in which a 6-3 majority led by Justice Anthony Kennedy struck down an anti-antidiscriminatory Colorado ballot initiative. In contrast with the Ninth Circuit in Hollingsworth, however, Kennedy's objection was based on the substance of the Colorado amendment. That it took away already-granted rights was neither necessary nor sufficient to make it unconstitutional under the reasoning he employed.

Most of the Obama administration's Hollingsworth brief is devoted to arguing that the court should adopt a standard of "heightened scrutiny" when deciding whether laws that make distinctions on the basis of sexual orientation violate the Equal Protection Clause of the 14th Amendment. In Romer, Justice Kennedy used the easier-to-meet standard of whether the law has a "rational basis." Racial distinctions are subject (at least in theory) to "strict scrutiny," the higher level, and sex distinctions to "intermediate scrutiny." No one is sure if there's a difference between heightened scrutiny and intermediate scrutiny, but it's clear both are stricter than rational basis and less strict than strict scrutiny.

The administration brief is not consistent with the view Obama expressed in his interview: The court could apply heightened scrutiny and find that the decision of any state to adhere to the traditional definition of marriage fails to meet it. Bam, gay couples can marry even in Utah or Mississippi.

But the administration refrains from urging the court to do that. Instead, it offers a middle path of its own. "The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships," bypassing the broader question of whether the Constitution mandates same-sex marriage.

California permits same-sex couples to enter into domestic partnerships--elsewhere called civil unions. As the brief explains:

State law grants domestic partners all of the substantive rights and obligations of a married couple. . . . Same-sex partners in California may, inter alia, raise children with the same rights and obligations as spouses; adopt each other's children; gain a presumption of parentage for a child born to or adopted by one partner; become foster parents; file joint state tax returns; participate in a partner's health-insurance policy; visit their partner when hospitalized; make medical decisions for a partner; and, upon the death of a partner, serve as the conservator of the partner's estate.

The administration's position is that under the "defining constitutional ideal that 'all persons similarly situated should be treated alike,' " California violates the rights of same-sex couples by denying them the "dignity, respect, and stature" that the label "marriage" connotes.

ENLARGE

A civil union ceremony in Illinois.
Associated Press

That would not be a problem in states that don't recognize same-sex relationships at all, or in which civil unions entail significantly less rights than marriage. But as the administration notes in its brief, seven other states, like California, have civil unions that are substantively similar to marriage: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. If the court adopts the administration's reasoning, the effect would be to force same-sex marriage on those states along with California. (Nine states have already legalized same-sex marriage, whether by judicial action, legislation or ballot measure.)

As a legal matter, the administration's position seems odd. The effect of banning same-sex marriage in civil-union states is purely expressive: The states are in effect declaring that homosexual relationships are inferior to marriages. That is a value judgment with which many people disagree, but why should the state not be free to express it--especially when the expression has no material effect?

The likeliest answer is political: that the administration has concluded (or anticipates that the court, which is to say Justice Kennedy, will conclude) that imposing same-sex marriages nationwide would be disruptive in the way Roe v. Wade was--but the civil-union states are socially liberal enough that they would accept such a ruling.

For supporters of same-sex marriage, however, there's a danger that adopting this legal compromise would shut down an avenue of political compromise. Civil unions, first established in Vermont when the state Supreme Court held that the state constitution required equal material rights for same-sex couples, were supposed to be the middle ground--or, if one is inclined to see legal recognition of homosexual couples as progress, an intermediate step.

Vermont's Legislature eventually legalized same-sex marriage, as did some other states that recognized civil unions first. If the court adopts the Obama administration's approach and mandates same-sex marriage in civil-union states, the remaining 33 states, most of which are socially conservative, would be left without that option. Supporters of same-sex marriage may find it harder to make their case if the logical compromise is off the table.

Dumbest Political Stunt Ever Mark Kellly, husband of Gabrielle Giffords and a born-again gun-grabber, set himself up for hypocrisy charges when he posted on Facebook "a photo of himself buying a military-style rifle," the Associated Press reports.

Kelly said he was trying, in the AP's words, "to demonstrate how easy it is to obtain the kind of firearms he's lobbying Congress to ban." As the AP pointed out, it actually wasn't all that easy:

Doug MacKinlay is the owner of Diamondback Police Supply, the shop where Kelly bought the guns. He said Kelly bought the rifle on March 5 but couldn't immediately take possession of it because the shop had bought it from a customer. As a result, the store is required by a Tucson ordinance to hold the gun for 20 days to give the city enough time to make sure the weapon wasn't used in a crime, MacKinlay said.

What a stupid stunt. It's like a proponent of laws against hate speech standing on a street corner shouting racial slurs in order to "demonstrate how easy it is" to say offensive things under the First Amendment. Of course it's "easy" to do something that is perfectly legal and protected by the Constitution. That doesn't mean you ought to do it, especially if you claim to believe it is wrong.

Sounds Like a Plan "A controversy has been re-ignited this week as ten new ads go up on San Francisco Muni buses containing quotes used by terrorists," reports KPIX-TV:

"Killing Jews is worship that draws us closer to Allah," reads one of the ads, which has people debating the line between free speech and hate speech. . . .

Several San Francisco city leaders, including District Attorney George Gascon, have condemned the campaign.

"San Francisco won't tolerate Islamophobic bigotry," said Gascon. "The only thing necessary for evil to prevail is for good people to look the other way and do nothing."

When Edmund Burke said "All that is necessary for evil to triumph is for good men to do nothing," he meant it as a warning. In this context, it sounds as if Gascon means it as a plan.

Martin Luther They Ain't "Demonstrations took place across the United States and internationally to protest the male-only conclave to elect the next pope," reports Orlando's WOFL-TV:

Members of a church in Sarasota sent up their own smoke signals Tuesday--not black or white, but pink.

They gathered at the St. Andrews UCC Church in Sarasota. The vigil was one of many held on Tuesday around the globe. Not all were so peaceful though: a melee ensued outside the Vatican Tuesday when two female activists who went topless were dragged away from St. Peter's Square. . . .

"There's one point plus billion Roman Catholics. 500 million women. All cultures, all languages, throughout the world living today, are not represented in the conclave. Not one woman," said Katy Zatsick, with the Mary Mother of Jesus Inclusive Catholic Community.

The Cs in UCC--which was Barack Obama's denomination before he threw his crackpot "spiritual mentor" under the bus--do not stand for Catholic Community but (United) Church of Christ. Which makes us wonder what the deal is with Katy Zatsick. If she wants to protest the Catholics, why doesn't she just become a Protestant?

Other Than That, the Story Was Accurate "It was surely one of the most heart-wrenching--and controversial--news photos of the past year, and maybe many years. The image of a Palestinian man, his head thrown back in grief as he cradled the shrouded body of his infant son, set off a fierce war of words. . . . The Post's caption on the photo said the child died "after an Israeli airstrike in Gaza City," which implied Israeli culpability. In light of the U.N. report, the paper said it would publish an editor's note in Wednesday's editions along with the photo that clarifies the circumstances surrounding it. The note reads, in part, that the U.N. report "has now cast doubt" on Israel's involvement."--Paul Farhi, Washington Post, March 13

Out on a Limb

"The new DVHP Initiative is based on an assessment tool that researchers have identified that can be used to reliably recognize women who may be in fatally abusive relationships. Attempted strangulation, threats with weapons, sexual assault and obsessively jealous and controlling behavior are among the markers of particularly lethal abusers."--White House press release, March 13

Gulp Early and Often When we first saw the headline of this Ben Smith BuzzFeed.com piece, "How Big Gulps Are Exactly Like Cigarettes," our first thought was that Smith must've wasted a lot of matches reporting the story.

Turns out the point of comparison is that the NAACP objected to both Mayor Ed Koch's 1986 proposal to require nonsmoking sections in restaurants and Mayor Michael Bloomberg's 2013 proposal to ban large soft drinks. In 1986, the NAACP "drew a stinging rebuke in a New York Times editorial":

Hazel Dukes, the [local NAACP] chapter's president, joins the cigarette company in its claim that anti-smoking regulations are discriminatory--simply because blacks are more likely to smoke than whites.

One might as well say smoking is "exactly like" voter fraud, except that the Times disapproves of the former and approves of the latter.

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